Sunday, March 23, 2014

Pearls of James Madison: Part II

On the Bill of Rights

As
a prime mover behind the writing of the Constitution and as a champion of the
Bill of Rights, James Madison, as a Representative from Virginia, attended the
first sitting of the new Congress
in New York and Philadelphia in 1789-1790. While nine of the thirteen states
had ratified the Constitution, allowing Congress to hold its first sessions, a
strong desire to explicitly secure the freedom won by a long and costly war of
independence made appending a bill of rights to the Constitution a first
concern of many Americans and critics of the "charter." The absence
of such a security in the wording of the Constitution and from the enumerated
powers of the federal government did not assure the document's critics that
life, liberty and the pursuit of happiness were adequately protected from
abuses of power.

What
the critics saw was a document which detailed the limitations of federal government
power (the enumerations), but no written assurances that, should individuals in
that government overstep or abuse their powers, they could be opposed and
charged with tyranny or corruption in the pursuit unlimited power. Defenders of
the Constitution dismissed these concerns, saying, on one hand, that their
absence from the document was instead an assurance of their inviolability; and,
on the other hand, that a "bill of rights" questioned the legitimacy
of any powers granted to the federal government in its enumerated powers (and,
by implication, a questioning of the legitimate powers of the state
governments), or would leave other, unnamed rights open to violation and government
mischief.

The
call for a "bill of rights" to be incorporated into the federal
constitution was inspired by the Virginia
Declaration of Rights, adopted in the summer of 1776 before the
proclamation of the Declaration of Independence. George Mason was its principal
author. As noted in "Pearls
of James Madison, Founder," Madison was originally dubious about the
value and function of a bill of rights in the federal scheme of things, but
eventually saw their necessity and carried the fight for a bill of rights to
the Congress's deliberations on a host of post-ratification matters. As did
George Mason. The Constitution
Society noted:

As passed, the Virginia Declaration
was largely the work of George Mason; the committee and the Convention made
some verbal changes and added Sections 10 and 14. This declaration served as a
model for bills of rights in several other state constitutions and was a source
of the French Declaration of the Rights of Man and of the Citizen, though its
degree of influence upon the latter document is a highly controversial
question. The reference to "property" in Section I may be compared
with the use of the word by John Locke, its omission by Thomas Jefferson from
the second paragraph of the Declaration of Independence, and its use in the
Constitution, Amendments V and XIV.

George Mason (1725-92), one of
Virginia's wealthiest planters, a neighbor and friend of Washington, is best
remembered for his part in drafting the Virginia constitution of 1776. In 1787
he was a leader in the Federal Convention. Refusing to sign the completed
document, Mason, along with Patrick Henry and others, opposed its ratification
in the Virginia Convention of 1788.]

As
noted in my original column, the term property
was omitted from the Declaration because of the slavery issue. To recruit the
southern colonies in a united Declaration, the term was omitted from the final
draft insofar as it meant involuntary human bondage as a legitimate form of
property. Jefferson,
a lifelong opponent of slavery, was as helpless in the circumstances as any
other critic of the institution:

Jefferson wrote that slavery was
like holding “a wolf by the ear, and we can neither hold him, nor safely let
him go.” He thought that his cherished federal union, the world’s first
democratic experiment, would be destroyed by slavery. To emancipate
slaves on American soil, Jefferson thought, would result in a large-scale race
war that would be as brutal and deadly as the slave revolt in Haiti in
1791. But he also believed that to keep slaves in bondage, with part of
America in favor of abolition and part of America in favor of perpetuating
slavery, could only result in a civil war that would destroy the union.
Jefferson’s latter prediction was correct: in 1861, the contest over slavery
sparked a bloody civil war and the creation of two nations—Union and
Confederacy—in the place of one.

Like
Jefferson and others who recognized the evil of slavery and of regarding
enslaved men as "property," Madison resigned himself to the reluctant
consolation that the moral conflict over slavery would need to be resolved by
another generation, and possibly violently, and not in his own time.

Patrick Henry, the most
famous and articulate opponent of ratification of the Constitution (an
"Anti-Federalist"), warned the Virginia Convention that it should at
least insist that the new Congress take up the issue of a bill of rights. In
his 24th and last speech
during the Convention before it adjourned, he said:

Mr. Chairman, when we were told
of the difficulty of obtaining previous amendments, I contended that they might
be as easily obtained as subsequent amendments. We are told that nine states
have adopted it. If so, when the government gets in motion, have they not a
right to consider our amendments as well as if we adopted first? If we
remonstrate, may they not consider and admit our amendments?

But now, sir, when
we have been favored with a view of their subsequent amendments,I am confirmed in what I
apprehended; and that is, subsequent amendments will make our condition worse;
for they are placed in such a point of view as will make this Convention
ridiculous. I speak in plain, direct language. It is extorted from me. If this
Convention will say, that the very right by which amendments are desired is not
secured, then I say our rights are not secured. As we have the right of
desiring amendments, why not exercise it? But gentlemen deny this right, it
follows, of course, that, if this right be not secured, our other fights are
not.

The proposition of subsequent
amendments {650} is only to lull our apprehensions. We speak the language of
contradiction and inconsistency, to say that rights are secured, and then say
that they are not. Is not this placing this Convention in a contemptible light?
Will not this produce contempt of us in Congress, and every other part of the
world? Will gentlemen tell me that they are in earnest about these amendments?

On
June 8th, 1789, Madison spoke about the dissatisfaction with the
Constitution not even exhibiting in its entirety a token security of liberty.
All quotations of Madison here are from James
Madison: Writings.*

It cannot be a secret to the
gentlemen in this house, that, notwithstanding the ratification of this system
of governmentby eleven of the thirteen
United States, in some cases unanimously, in others by large majorities; yet
still there is a great number of our constituents who are dissatisfied with it;
among whom are many respectable for their talents, their patriotism, and
respectable for the jealousy they have for their liberty, which, thought
mistaken in its object, is laudable in its motive. There is a great body of
people falling under this description….

We ought not to disregard their
inclination, but, on principles of amity and moderation, conform to their
wishes, and expressly declare the great rights of mankind secured under this
constitution. (p. 439)

Discussing
in their embryonic form some of the amendments to be taken up by the House,
Madison outlined them for his colleagues:

That the people have an
indubitable, unalienable, and indefeasible right to reform or change their
government, whenever it be found adverse or inadequate to the purposes of its
institution….

The civil rights of none shall be
abridged on account of religious belief or worship, nor shall any national
religion be established, nor shall the full and equal rights of conscience be
in any manner, or on any pretext infringed.

The people shall not be deprived
or abridged of their right to speak, to write, or to publish their sentiments;
and the freedom of the press, as one of the great bulwarks of liberty, shall be
inviolable.

The people shall not be
restrained from peaceably assembling and consulting for their common good; nor
from applying to the legislature by petitions, or remonstrances for redress of
their grievances.

The right of the people to keep
and bear arms shall not be infringed; a well armed, and well regulated militia
being the best security of a free country: but no person religiously scrupulous
of bearing arms, shall be compelled to render military service in person. (pp.
442-443)

Madison
went on to itemize the proposed amendments covering the prohibition against
double jeopardy, bearing witness against oneself, excessive bail, cruel and
unusual punishments, the right to due process, and the prohibition of seizure
of private property without just compensation.

The rights of the people to be
secured in their persons, their houses, their papers, and their other property
from all unreasonable searches and seizures, shall not be violated by warrants
issued without probable cause, supported by oath or affirmation, or not
particularly describing the places to be searched, or the persons or things to
be seized.

In all criminal prosecutions, the
accused shall enjoy the right to a speedy trial, to be informed of the cause
and nature of the accusation. To be confronted with his accusers, and the
witnesses against him; to have a compulsory process for obtaining witnesses in
his favor; and to have the assistance of counsel for his defense. (p. 443)

Not
forgetting the states and their relationship with the federal government,
Madison added:

No state shall violate the rights
of conscience, or the freedom of the press, or the trial by jury in criminal
cases. (p. 443)

And,
finally:

The powers not delegated by this
constitution, nor prohibited by it to the states, are reserved to the States
respectively. (p. 444)

Answering
the imagined dangers of a bill of rights argued by others, Madison discoursed
to the assembly on the benefits of having a bill of rights, and how the absence
of one affected the governance of other nations, especially Great Britain.

I acknowledge the ingenuity of
those arguments which were drawn against the constitution, by a comparison with
the policy of Great-Britain, in establishing a declaration of rights; but there
is too great of difference in the case to warrant the comparison; therefore the
arguments drawn from that source, were in a great measure inapplicable. In the
declaration of rights which that country has established, the truth is, they
have gone no farther, than to raise a barrier against the power of the crown;
the power of the legislature is left altogether indefinite.

Although I know whenever the
great rights, the trial by jury, freedom of the press, or liberty of
conscience, came in question in that body, the invasion of them is resisted by
able advocates, yet their Magna Charta does not contain any one provision for
the security of those rights, respecting which, the people of America are most
alarmed. The freedom of the press and the rights of conscience, those choicest
privileges of the people, are unguarded in the British constitution. (p. 445)

Madison,
of course, could not have foreseen the "imperial" presidencies of men
like Franklin D. Roosevelt and Barack Obama, whose executive actions have
trumped the function of Congress (too often with its acquiescence), and,
indeed, would not recognize the federal government as it exists today, a
wealth-consuming and rights-negating behemoth which has usurped Americans'
rights and shredded the Constitution.

In our government it is, perhaps,
less necessary to guard against the abuse of the executive department than any
other; because it is not the stronger branch of the system, but the weaker. It
therefore must be levelled against the legislative, for it is the most
powerful, and most likely to be abused, because it is under the least control;
hence, so far as a declaration of rights can tend to prevent the exercise of
undue power, it cannot be doubted but such a declaration is proper. (p. 446)

Madison
prefaces his concerns that even a government whose powers have been enumerated
in favor of protecting liberty from "off the books" tyranny or
arbitrary power exercised through loopholes in wording or content has serious
shortcomings. He leads up to the power of taxation:

It is true the powers of the
general government are circumscribed; they are directed to particular objects;
but even if government keeps within those limits, it has certain discretionary
powers with respect to the means, which may admit of abuse to a certain extent,
in the same manner as the powers of the state governments under their
constitutions may to an indefinite extent; because in the constitution of the
United States there is a clause granting to Congress the power to make all laws
which are necessary and proper for carrying into execution the powers vested in
the government of the United States….

The general government has a
right to pass all laws which shall be necessary to collect its revenue; the
means for enforcing the collection are within the direction of the legislature:
may not general warrants be considered necessary for this purpose?...If there
was reason for restraining the state governments from exercising this power,
there is like reason for restraining the federal government. (pp. 447-448)

Taxation,
in Madison's time (and, indeed, throughout history) was the only
"necessary and proper" way men thought a government could raise money
to perform even its legitimate functions, such as maintaining the courts,
maintaining an armed force to stave off invasion, and maintaining a civil
police force. But even the most ardent and ambitious statists in Madison's generation
(such as Alexander Hamilton) would have found unimaginable a government which
presumed it "necessary and proper" to protect the environment, provide
subsidized housing, subsidize food purchases, police the securities business, monopolize
education, regulate nutrition, provide pensions and medical care subsidies,
enforce the purchase of medical insurance, subsidize medical and scientific
research, and etc., and also to debase its own currency to pay for these things
in an ever-widening range of powers.

The
term necessary and proper has been
interpreted by lawmakers and courts over the last two centuries to cover every
possible "crisis" the government feels committed to regulate and able
to police and resolve. If you are not a smoker, the government thinks it
"necessary and proper" to protect you against smokers. If you are
obese, the government thinks it "necessary and proper" to impose a
nutrition regimen. If you are a student, the government thinks it
"necessary and proper" to teach you. If you are "poor," the
government thinks it "necessary and proper" to support you in a
variety of economic ways. If you are a member of a designated
"minority," the government thinks it "necessary and proper"
to protect you from discrimination.

One
could list a hundred-page list in tiny print of human relations and actions the
government thinks it "necessary and proper" to legislate for and has
the "inherent" power to act on. This is not freedom as Madison and his contemporaries
imagined it. It is a clanking web of chains and fetters on your limbs and on
your mind.

What
has happened is that state governments – and even municipal ones – have simply
emulated the federal government in assuming illegitimate powers of taxation and
control of virtually every aspect of an individual's life and actions in the
course of pursuing his happiness.

We
also have in effect through the federal government bills
of attainder and ex post facto laws, which are expressly forbidden in
Article I, Section 10, Clause 1. Wealthy individuals in the public eye have
been targeted by the government to make examples of (e.g., Michael Miliken,
Leona Helmsley, even Redd Foxx) to frighten the public into obedience in terms
of ex officio bills of attainder
issued by the SEC, the IRS, the Justice Department, and even the EPA.

An
example of an undeclared ex post facto law was the arrest and imprisonment of Nakoula
Basseley Nakoula, maker of the "Innocence of Muslims" YouTube
trailer, on the unsubstantiated assertion (and later exposed as a "What difference
does it make?" lie) of Secretary of State Hillary Clinton that the trailer
was responsible for the Benghazi attacks. The unwritten law is that it is
illegal to make films that purportedly and potentially would incite "justifiable"
violence by Muslims by "disrespecting" or blaspheming against Islam
or any of its icons or tenets.

In
conclusion, America is as far away from the original intent of the Bill of
Rights as it is from the original purpose of the original Constitution,
subsequently amended in 1913 to include the 16th and 17th
Amendments establishing a pernicious income tax and the direct, popular
election of U.S. senators.

To
the Marxists, socialists, liberals, and other statists who reside in the bubble
world of Progressivism, this is indeed "progress" away from life, liberty, and the pursuit
of happiness, to a condition of stasis, security, and institutionalized
selflessness.

1 comment:

Unfortunately, when a vacuum exists in leadership, thugs (imperial presidents, renegade congressmen/women, activities judges) tend to fill the void. I suspect that we could spin-the-wheel-of-blame to each branch of government, as well as apathetic and abscent citizens.Oscar